Reasons for Decision – Summary Conviction Appeal
Court File No.: CR-24-10000046-00AP
Date: 2025-03-06
Superior Court of Justice – Ontario
Between:
His Majesty the King, Appellant
and
Balanaisanthan Sooriarasan, Respondent
Before: S.F. Dunphy J.
Counsel:
Darren J. Hogan, for the Crown Appellant
Alan D. Gold, for the Respondent
Heard at Toronto: February 25, 2025
Introduction
[1] This is an appeal from the June 11, 2024 decision of Block J. of the Ontario Court of Justice at the opening of the trial in this matter staying the proceedings and finding a breach of the respondent’s rights under s. 11(b) of the Charter of Rights and Freedoms.
[2] For the reasons that follow, I am granting this appeal, vacating the stay of proceedings entered by Block J. and remitting the matter back to the Ontario Court of Justice forthwith to fix a new date for trial as soon as possible. The trial was delayed due to an erroneous ruling of the initial trial judge on a third-party records application not made by the Crown. The consequence of this was a successful certiorari application by the affected third party who had not been given an opportunity to make submissions before a ruling affecting his interests was made. This was clearly an exceptional circumstance within the Jordan framework and there was no basis in the evidence on which to conclude the Crown had not reasonably attempted to avoid or shorten the delay occasioned by an erroneous ruling the Crown diligently attempted to warn against.
Factual Background
[3] Just over a week prior to the scheduled date of this two-day trial on June 15, 2023, the Crown disclosed that the arresting officer was on leave and might not be able to testify at trial. The Crown’s case could not be made absent this witness. After some exchanges between counsel over the following days, the defence brought an O’Connor application on short notice to seek disclosure of health records relating to the officer and the reasons for his being on leave. The Crown objected to the defence application as moot because the officer was present and prepared to testify at the trial opening. The Crown further advised the trial judge that the officer had standing on the defence application to disclose his personal health records and wished to be heard but that his lawyer could not attend that morning on short notice.
[4] The trial judge granted stage one of the defence O’Connor application, subpoenaed the documents in question and adjourned matters to the following week without hearing from the officer’s counsel. The following week the trial judge declined a second request relayed on behalf of the officer’s counsel by the Crown to schedule a hearing at which the witness’ counsel could be present, stating “that ship’s sailed”. She instead adjourned to a date later in July to deliver her decision as to whether a stage two hearing would be required following her review of the health records that had by then already been produced and were in her possession.
[5] Prior to her decision on stage two being rendered, counsel for the officer brought a certiorari application to quash the decision to proceed in his absence. This application was ultimately successful. The result was that the trial judge’s stage one O’Connor decision was quashed and the records disclosure application and the trial were both sent before a new Ontario Court of Justice trial judge. The newly-assigned judge (Block J.) then scheduled and conducted the O’Connor hearing in the presence of counsel for the officer, granted the defence application in part by ordering production to the defence of some of the documents requested and scheduled a s. 11(b) application of the defence immediately prior to the re-scheduled opening of the trial on June 13, 2024 to consider the impact of the resulting delay of almost exactly one year.
[6] Following the s. 11(b) hearing on June 11, 2024, Block J. granted the defence application and entered a stay of proceedings. He found that the delay in the start of the trial was not a discrete exceptional event and that at all events the Crown had failed to take “deliberate aggressive steps” to mitigate the delay by persuading the trial judge to cure the procedural defect that gave rise to the certiorari application by means of a “consent application” that no party proposed or consented to. He also found that the Crown had “promoted” the error made by the trial judge, suggested that the officer’s counsel had actually initially consented to the stage one hearing proceeding in his absence and found that the Crown bore responsibility for the certiorari application that it did not bring because it failed to persuade the trial judge “on consent” to correct the “minor error” that gave rise to the certiorari application before the application was made.
Issue for Determination
[7] Did Block J. commit a reversible error of law in characterizing the delay arising from the certiorari application and granting the 11(b) application?
Discussion and Analysis
[8] In my view, the decision of Block J. misapplied the “exceptional circumstances” part of the Jordan framework in assessing the reasonableness of the delay that occurred in this case. In Jordan, the Supreme Court defined exceptional circumstances as circumstances that lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably avoidable and that Crown counsel cannot reasonably remedy the delays emanating from the circumstance once they arise (at Jordan, para. 69).
[9] The sole cause of the delay to the trial was the decision of the trial judge to hold a stage one O’Connor hearing without hearing from the affected party – the officer whose confidential health records were being sought – or his counsel. That decision was successfully challenged by the affected witness in the certiorari application that followed. The challenged decision of the trial judge was taken quite expressly against the representations of the Crown who clearly and unambiguously informed the trial judge that the witness whose privacy interests were at stake in the defence application had standing to be heard at the stage one O’Connor hearing and that his counsel wished to appear but was unable to appear that morning on short notice.
[10] Block J. was under the misapprehension – contradicted quite explicitly by the transcript of the June 15, 2023 hearing – that counsel for the officer “apparently did not object to the matter proceeding without him”. That was a finding for which the only evidence was to quite the opposite effect. Counsel’s request to be heard was relayed by the Crown to the trial judge on June 15 (and again on June 22) and it was the trial judge’s decision to proceed in the absence of the affected party or his counsel that was the basis of the certiorari application that such counsel subsequently brought.
[11] The effect of the witness’ certiorari application was to stay further proceedings in the Ontario Court of Justice until the application was dealt with. There is no suggestion that Crown somehow instigated or controlled the application in any way. The decision of the trial judge that gave rise to the application could not have been anticipated and was opposed by the Crown. In short, the delay resulting from the certiorari application was something that lay entirely and quintessentially beyond the Crown’s control nor could such an error be anticipated. It satisfies in every conceivable way the first part of the definition of “exceptional circumstances” in Jordan.
[12] The only remaining question is whether there were any reasonable steps that the Crown ought to have taken but failed to take to mitigate the resulting delay. I agree with the Crown that Block J. applied the wrong legal test in assessing the second part of the “exceptional circumstances” test. Block J. interpreted this as calling for “deliberate aggressive steps” to be taken by the Crown, a higher standard than the “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” called for by the Supreme Court of Canada (Jordan at para. 70).
[13] Since the effect of the certiorari application was to remove the matter from the jurisdiction of the Ontario Court of Justice until the application was dealt with, the trial could not possibly have been held before January 12, 2024 when the decision granting the certiorari application was released. While defence counsel suggested a degree of unhappiness at the celerity with which the certiorari application was conducted by counsel for the officer, there is no basis in the evidence before me to suggest that there was any material delay in that application being scheduled and then heard. The application was brought on July 20, 2023 and the hearing conducted on October 25, 2023. The period of time it was under reserve thereafter could not be anticipated and was of course beyond the control of the Crown.
[14] After the certiorari application was filed on July 20, 2023, there is no serious basis to suggest that the Crown could have taken any steps to accelerate the timing in any material way. Indeed, Block J. agreed that the Crown did all that could be done to mitigate the delay after the certiorari application was filed. The Crown (and defence) had arranged for a new trial date in February 2024, a trial date that was ultimately lost due to the timing of the release of the decision on the application in mid-January (not leaving enough time for the defence O’Connor application to run its course prior to the trial).
[15] If, as is clear, the Crown took all reasonably available steps to mitigate the delay after the application was brought, the only basis to attribute the resulting delay to the Crown instead of the exceptional circumstance is if the Crown failed to take a reasonably available step before the application was brought.
[16] What steps could the Crown reasonably have taken prior to July 20? The decision to proceed with Step One to the O’Connor hearing was made by the trial judge on June 15, 2023 despite the clearly stated objection of the Crown that the witness whose interests were at stake had standing, had retained counsel and wished to be heard on the matter. The Crown did not ask the trial judge to make the ruling she made. She made the ruling, issued the subpoenas for the requested documents and received them before the next hearing on June 22, 2023. Nevertheless, on the return of the matter on June 22, the Crown again relayed the request of the witness’ counsel to be heard which gave rise to the trial judge’s comment that “that ship’s sailed”.
[17] The standard laid down by the Supreme Court of Canada to measure the adequacy of the Crown’s actions to avoid or mitigate delay is “reasonableness” and not “perfection in hindsight”.
[18] Justice Block found that during the interval between the decision of the trial judge and the filing of the certiorari application, “steps could have been taken at [the Ontario Court of Justice] before Her Honour, on consent, to redeem any minor error, in my view, that might have taken place” (italics mine).
[19] With respect, that counsel of hindsight directed at a party having neither advance notice of nor responsibility for the certiorari application is a tall order and at best a highly speculative one. Crown counsel brought to the trial judge’s attention the very circumstances – the absence of the affected party with standing and his counsel – that gave rise to the certiorari application. The trial judge made the decision she made. She declined to revisit the initial order when the same objection was brought to her attention the following week. By then the order had been made and acted upon – the subpoena was issued and the documents had been received. There is no basis in the evidence to presume that the “minor error” was so considered by the affected party who brought the successful certiorari application or that he would have consented to proceeding in the manner suggested a year after the fact. There is no basis to presume that having already refused to reconsider the matter on June 22 the trial judge would have scheduled a special hearing to reconsider it yet again. The suggestion of a “consent” application heading off a certiorari application by a third party outside of the Crown’s control is unrealistic in the extreme.
[20] The Crown was effectively a by-stander to the certiorari application and there is no suggestion that it took a bad faith, frivolous or dilatory position in relation to it. The Crown took reasonable steps to mitigate, including having procured an early trial date that was lost when the certiorari decision was released too close to the trial date to permit the defence third party records application to be completed.
[21] The entire period of delay resulting from the trial judge’s challenged decision on June 15, 2023 was clearly an extraordinary circumstance that cannot be laid at the feet of the Crown for failure to anticipate, avoid or mitigate. The decision of Block J. was the product of error and must be reversed.
Disposition
[22] The appeal is granted, the stay of proceedings is vacated and the matter is returned to the Ontario Court of Justice on Thursday April 3, 2025 in courtroom #407 at the New Toronto Courthouse, 10 Armoury Street at 9:00 a.m. by video to fix a new trial date. The original version of these reasons has been amended to insert the return date agreed by the parties.
S.F. Dunphy
Date: March 6, 2025